Space and Time as Central Issues of Society’s Perception of Law. Integraal Link Between Law and Time and Space

• Author: Raul Narits
• Pages: 120-127

Raul Narits

Space and Time as Central Issues of Society's Perception of Law. Integraal Link Between Law and Time and Space

A tendency towards monistic thought is always noticeable in scientific thinking. Every discipline endeavours certain unity, expressed by an attempt to explain the phenomena in its area of research through a basic principle or principles. Representatives of many other disciplines always wonder why legal science deals with national law only. And national law is often treated as merely a collection of legal provisions. Even supranational legal provisions (such as European law) are often explained in the context of a national legal order. We may see that legal provisions and legal principles, and legal provisions and values are treated separately in legal literature. At the same time, the monistic tendency is not unfamiliar to legal science. It is evident in the reception of Roman law and its meaning in the formation of the Continental European legal paradigm. "Europanisation of legal science" has been a recent subject of discussion¹. On the other hand, the applicability of law (objective law) is always limited by space and time, and this largely differentiates legal science from other social sciences and particularly from natural sciences.

Those who have had the consistency to seek legal literature for answers to the question of space and time², have certainly noticed that such a posing of the question invariably leads to the close connection between law and a certain territory.Otherwise said, it is a certain stable hermeneutic conditionality of law and the state, the relations of which can be studied systematically³. On the other hand is the fact that science has, rather independently, delimited certain spaces in law that allow themselves to be identified with certain conditionality via political borders⁴. One of the merits of the historical school in the perception of law, as demonstrated by studies in the 20^th century, was the perception of not only the spirit of a specific nation, but the attempt to understand law supranationally, at least within Europe. Comparison of law still contains not only a comparison of the respective institutions and regulations, but always an element of systematic comparison as well⁵. In this connection, we have the opportunity to handle and see law not just as the product of the legislative activities of the state, but an expression of culture that extends beyond nations and groups of nations. "Regions of law", which are distinguishable in space, are usually spoken about in this context. It is certain that in the "universal historical" context, observations about law must be able to describe law as an originally social phenomenon. This aspect is related to the dimension of time. Naturally, the spatial dimension of law has to be taken into account as well⁶.

1. New socio-political situation in Estonia and Constitution of 1992

In the 1990s, Estonia went through major changes in state affairs and social affairs as a whole. The collapse of communism was a process that concerned the entire Eastern Europe. The new reality brought about both changes and losses, things that were qualitatively new and those that were seemingly new. There was no area of social affairs that the events of this period did not touch upon. After Estonia regained independence, the most important document for the Estonian state, the Constitution, was passed in 1992⁷. In fact, the new socio-political situation in Estonia started to form already in the mid-1980s. The act that declared the historic blue, black and white colour combination as Estonian national colours and the cornflower and the chimney swallow as the national symbols may be regarded as the first constitutional act of the period⁸. The Supreme Council's declaration of the sovereignty of the Estonian Soviet Socialist Republic on 16 November 1988 was also a highly important act. In 1989, giving a legal opinion on the Molotov-Ribbentrop Pact became a central issue. The Supreme Council's resolution of 12 November 1989 "On the historic and legal assessment of the events of 1940 in Estonia" qualified what happened in Estonia in 1940 as aggression, military occupation, and annexation of the Republic of Estonia by the Soviet Union. Estonia defined itself as a state which endeavours the restoration of independence and termination of occupation. The Supreme Council's resolution on Estonia's status, dated 30 March 1990, affirmed that although Estonia was in the status of an occupied state, its legal consistency continued de jure. There were other legal programme documents. When the referendum on independence was held on 3 March 1991, it was attended by 82.86% of the population with voting rights, and 77.83% of them answered the question "Do you wish that the independence and sovereignty of the Republic of Estonia be restored?" in the affirmative. It was thus natural that when the referendum for passing the Constitution was held in 1992, it was attended by 446,708 persons of the 669,080 who were entered in the lists of the voting population, and 407,867 voted for and 36,147 voted against the Constitution and the Constitution Implementation Act.

2. New era and related questions

Despite the aforementioned formal acts and events, answers should be sought in the legal context to those questions or circles of questions that such a time and space places in the foreground. It is no exaggeration to say that these were revolutionary times and three circles of questions have always been in the foreground in terms of revolution law: sources of law, interpretation of law, and gaps in law. Revolutionary periods have shown and are showing that finding law, perceiving it, creating it, and understanding it do not boil down to simple subsuming. Social shocks show that any legitimatisation issues are the closest related to and affected by, in the broad sense, the culture (traditions) of that society. Literature stresses that this is why it is particularly important to know that culture, traditions, and historical social experience provide relatively fixed frames for discussions with a legal focus⁹, as well as legal decisions. However, opportunities for discussion are not very broad in revolutionary times, as the parties that are fighting are the old and the new, summa summarum. When viewing the 1990s in Estonia, it should be said that the aforementioned constitutional acts did not only imply assessment of the actual facts of history, but served as a curious protective shield to the freedoms and greater decisive power attained in the struggle for independence¹⁰. The existence of this peculiar protective shield does not (and did not then) solve the question of on which premises and within which limits a discourse in law and on law is possible at all. In view of time and space as the attributes of law, we may speak about the legitimacy of law when it is based on the historical, including cultural, legitimacy of law. Developments in legal science are only a fragmentation of the concept of legitimation. Systematic observations from other areas of knowledge, such as sociology, political science, theory of systems, etc., can naturally be helpful in such activities. However, I find it particularly important to stress that practice plays the primary role in the balance between theory and practice in legal science¹¹.

Such an understanding has long-term and very serious consequences and effects. If we were to believe that upon revolutionary changes in the time dimension and no changes in the spatial dimension, the state as such would remain the same, there would be no reason to speak about a change in rights and obligations in the meaning of the rights and obligations that were in force so far and will remain in force. It is simply a fact that a new era always brings about something new. But if we proceed from the premise that in a new socio-political situation, state power is not, at least not formally, related to the formerly applicable law, an entirely new picture is constructed. We can also speak about a third option which also applies to the Estonian example. The third approach is based on the fact that Estonia has not always been an independent state. Or rather, the period of independence was fairly short for Estonia in relative terms of time scale¹². Estonian independence was born on 24 February 1918, when the Governors Council published the "Manifest for all peoples of Estonia". The manifest declared Estonia to be an independent democratic republic and set out the general principles on which basis the state was to govern in the future. The democratic republic was seen in its historical and demographic boundaries - these were the parts of Estonia within the state border. The first independence period lasted until 1940. But it is this historic fact that indicated that at least historically, there is a link between the Republic of Estonia declared in 1918 and the Republic of Estonia that regained independence in 1991. The situation forces us to think about the important facet of legitimation with the help of legal provisions. We are speaking about the social and legal validity of law as a collection of provisions. The problem is that the legal validity of a provision does not necessarily guarantee the provision's force in the social sense. Or vice versa: the legitimacy of legal provisions cannot be automatically derived from their social validity. Thus, the social validity of provisions and their legitimacy have always represented two different qualities¹³.

3. Formation of legal policy communication

The Estonian example offers a lesson about how the 1992...